Peters v. City of Shreveport

• Decision Date: 26 May 1987
• Docket Number: No. 86-4608,86-4608
• Citation: 818 F.2d 1148
• Parties: 43 Fair Empl.Prac.Cas. 1822, 28 Wage & Hour Cas. (BN 169, 43 Empl. Prac. Dec. P 37,160, 44 Empl. Prac. Dec. P 37,533, 55 USLW 2685, 107 Lab.Cas. P 34,936 Karen D. PETERS, et al., Plaintiffs-Appellees Cross-Appellants, v. The CITY OF SHREVEPORT, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1148

818 F.2d 1148

43 Fair Empl.Prac.Cas. 1822,

28 Wage & Hour Cas. (BN 169,

43 Empl. Prac. Dec. P 37,160,

44 Empl. Prac. Dec. P 37,533, 55 USLW 2685,

107 Lab.Cas. P 34,936

Karen D. PETERS, et al., Plaintiffs-Appellees Cross-Appellants, v. The CITY OF SHREVEPORT, Defendant-Appellant Cross-Appellee.

No. 86-4608.

United States Court of Appeals, Fifth Circuit.

May 26, 1987.

Rehearing and Rehearing En Banc Denied July 22, 1987.

L. Edwin Greer, Charles C. Grubb, Shreveport, La., for defendant-appellant cross-appellee.

Johnnie J. Butler, Acting Gen. Counsel, Washington, D.C., for amicus-E.E.O.C.

Frances Baker Jack, Hunter & Jack, James J. Thornton, Johnston & Thornton, Shreveport, La., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Western District of Louisiana.

Before RANDALL and GARWOOD, Circuit Judges, and SCHWARTZ, ^* District Judge.

RANDALL, Circuit Judge:

I.

The twenty-seven plaintiffs and intervenors in this case are currently or were formerly employed by the defendant City of Shreveport in the capacity of "police communications officer" ("PCO"). PCOs answer the city police department's telephones, plot the changing positions of patrol cars on the department's computer, and address citizen's complaints to the nearest patrol car by means of a two-way radio. The plaintiffs, a group composed of twenty-four women and three physically handicapped men, alleged that the city discriminated against them on the basis of sex by paying approximately forty percent higher wages to its "fire communications officers" ("FCOs"), a predominantly male group, for substantially equal work.

The city had always paid FCOs substantially more than PCOs, ¹ but in 1981 the disparity increased dramatically when the city became aware of and began to comply with a state statute setting minimum salaries for FCOs at a rate twenty-five percent higher than that of firemen. La.Rev.Stat.Ann. Sec. 33:1992(9) (West Supp.1986) ("A fire alarm operator or dispatcher, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman."). Since the statute contains a similar provision for fire captains, the city brought itself into compliance by equating the salaries for FCOs with that of the fire captain.

In February of 1983, plaintiffs brought suit against the city, alleging that differences in the city's wage, promotion, and pension policies for FCOs and for PCOs violated the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d), Title VII, 42 U.S.C. Sec. 2000-e et seq., the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and the fourteenth amendment to the United States Constitution.

After a bench trial, the district court found that the plaintiffs had proven a prima facie case under both the Equal Pay Act and Title VII with respect to the wage disparity between FCOs and PCOs. The district court also found, however, that although sex was a factor in the city's decision to pay FCOs more than PCOs, it was not a significant factor in the decision. Thus, the city carried its burden of rebutting plaintiffs' Title VII case by showing that sex was not a significant factor in its decision, but failed to rebut the plaintiffs' case under the Equal Pay Act because it could not show that sex "provide[d] no part of the basis for the wage differential." 29 C.F.R. Sec. 800.142 (1986), superseded by The Equal Pay Act: Interpretations, 51 Fed.Reg. 29,816 (August 20, 1986) (to be codified at 29 C.F.R. Part 1620). Plaintiffs' failure to prove the discriminatory intent required by Title VII also foreclosed recovery under section 1983 and the fourteenth amendment. Thus, the district court found that the plaintiffs were entitled to relief solely under the Equal Pay Act.

The district court awarded plaintiffs two years of unpaid wages, computed as the difference between the wages each plaintiff received and the wages each plaintiff would have received had she been an FCO during this period. Because he found that the city's violation of the Equal Pay Act was not willful, the trial judge declined to award more than two years' worth of back wages. Finding also that the city had acted in good faith, the district court refused to award liquidated damages.

Before agreeing to a precise computation of damages for each plaintiff as required by the district court's judgment, the parties appealed to this court. In an unpublished opinion, we dismissed the appeal for lack of jurisdiction. Peters v. City of Shreveport, No. 85-4409, slip op. (5th Cir. May 23, 1986) [790 F.2d 892 (Table) ]. Because the district court had not yet entered judgment on plaintiffs' claims, the judgment appealed was not final and we lacked jurisdiction under 28 U.S.C. Sec. 1291. Id. at 7; see Gonzalez v. Texas Employment Comm'n, 563 F.2d 776, 777 (5th Cir.1977).

Having now obtained a final judgment from the court below, the parties again appeal the district court's decision. The city does not contest the district court's finding that the FCOs and the PCOs perform "equal" work within the Equal Pay Act. Instead, the city argues that the differential between FCO and PCO wages was based on a "factor other than sex"--namely, its reliance on a gender-neutral state statute--and therefore was excepted from the scope of the Equal Pay Act. The city also contends that since the PCO position has historically been occupied by men as well as women, the plaintiffs failed to make out a prima facie case of sex discrimination. The city further attacks the district court's award of damages to male plaintiffs.

In their cross-appeal, plaintiffs attack the district court's refusal to award liquidated damages, arguing that the city failed to carry its burden of showing that it acted in good faith. Plaintiffs also attack the lower court's refusal to award a third year of back pay for a willful violation, and argue that the court erred in not awarding prejudgment interest. Finally, plaintiffs take issue with the district court's finding that sex discrimination did not play a significant role in causing the disparity in pay between FCOs and PCOs. Because they proved discriminatory intent by a preponderance of the evidence, plaintiffs contend that the court below should have granted their claims for relief under Title VII, section 1983, and the fourteenth amendment.

II.

Congress enacted the Equal Pay Act to remedy what was perceived as a serious and deeply engrained problem of employment discrimination in private industry: the fact that "[t]he wage structure of all too many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same." S.Rep. No. 176, 88th Cong., 1st Sess. 1, reprinted in 109 Cong.Rec. 8914, 8914 (1963) [hereinafter cited as Senate Report ]. The existence of wage differentials based upon sex in American industry had a number of unhealthy effects upon the nation's economy, such as the depression of wages and living standards of employees necessary for their health and efficiency, the prevention of the maximum utilization of available labor resources, and the proliferation of labor disputes--all of which burdened commerce and the free flow of goods in commerce. The Equal Pay Act of 1963, Pub.L. No. 88-38, Sec. 2, 77 Stat. 56 (1963) (also finding that wage differentials based on sex constitute an "unfair method of competition"). In response to these concerns about the economic and social consequences of disparate wages, ² Congress adopted a solution that "was quite simple in principle: to require that 'equal work will be rewarded by equal wages.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting Senate Report, supra, at 1).

In response to repeated industry fears about a new and unfamiliar bureaucracy being set up to administer the Act, Congress enacted its new sex discrimination legislation as an amendment to the minimum wage provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et seq. The Equal Pay Act would thus be administered by a familiar agency equipped with enforcement procedures focused by years of judicial interpretation. Moreover, the scope of the Act's application would be limited by the FLSA's careful definitions of "employers," "employee," and "establishment." See 29 U.S.C. Sec. 202.

The Act's structure is relatively straightforward. It proscribes discrimination "between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. Sec. 206(d)(1). Thus, to establish a prima facie case under the Equal Pay Act, a plaintiff must show (1) that his or her employer is subject to the Act; (2) that he or she performed work in a position requiring equal skill, effort, and responsibility under similar working conditions; and (3) that he or she was paid less than the employees of the opposite sex providing the basis of comparison. Jones v. Flagship Int'l, 793 F.2d 714, 722-23 (5th Cir.1986). A showing of "equal work" requires only that the plaintiff prove that the "skill, effort and responsibility" required in the performance of the jobs compared are substantially equal. Id. at 723; see also Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (5th Cir.1973) (adopting "substantially equal work" test). Unlike the showing required under Title VII's disparate treatment theory, proof of discriminatory intent is not required to establish a prima facie case under the Equal Pay Act. E.g., Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1260 n. 6 (7th Cir.1985); ...